Naming a Covert Operative

This is a partial transcript of "Special Report With Brit Hume," July 18, 2005, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I would like this to end as quickly as possible so we know the facts. And if someone committed a crime, they will no longer work in my administration.

(END VIDEO CLIP)

BRIT HUME, CO-HOST: The president is talking, of course, about the CIA leak case. Blowing the cover of an undercover CIA operative is a crime under the Intelligence Identities Protection Act of 1982. And the assumption has been that a possible violation of that law is what the special counsel, Patrick Fitzgerald, is investigating.

But is it? For answers, we turn to our favorite law professor, Jonathan Turley, of George Washington University.

Welcome back.

JONATHAN TURLEY, GWU LAW PROFESSOR: Thanks.

HUME: So the Intelligence Identities Protection Act is the one we all thought he was looking at. But others are saying — many are saying that doesn’t fit very well. Why?

TURLEY: Well, first of all, this is a terrible federal law to prosecute anyone under. It’s a badly written law. It’s actually only been used once because you have to prove so many things. You have to prove that someone was a covert officer. You have to prove there was an intent to disclose that fact. These are things that are very, very hard in any federal case.

HUME: Let me stop you on the covert part of it. What is, under this law, what do you have to be? What do you have to have done or be doing to be identifiable under this law as a covert operative?

TURLEY: Well, it actually is very ambiguous as to how you define covert. And it’s supposed to be something formal. It’s supposed to be — you were supposed to be in a covert status. You’re using another name or your association with the CIA is not disclosed.

HUME: But there’s one more thing, as well, isn’t there? It has to do with where you are.

TURLEY: Yes. It tends to be an overseas assignment, yes.

HUME: And so you have — and you have to have been or have been within the past five years on such an assignment, correct...

TURLEY: Right.

HUME: ... to be — for your identity to be subject of a possible prosecution under this act?

TURLEY: Right. And Joe Wilson's wife does not seem to fit that classic definition.

HUME: And unless it could be established that someone, whoever did this, learned from classified information that this person was covert and revealed the information with the intent of undermining U.S. intelligence, you wouldn’t have a successful prosecution.

TURLEY: Yes. If you prosecuted under section A of this law, that’s exactly what you have to show. But the important thing for this investigation is that that was the means by which the criminal investigation began. They had enough to use that.

HUME: Right.

TURLEY: But in this town, usually you don’t get nailed by what causes a controversy. You get nailed by your response to it.

If you go back and you look at all of the federal investigations, you often see that people are prosecuted for what are called collateral crimes, obstruction of justice, perjury, or lying to a federal investigator.

HUME: In other words, attempted cover-ups of one kind or another or malfeasance during the investigation of the original malfeasance.

TURLEY: Yes.

HUME: All right. So give me some idea of what statutes could be in play in that realm.

TURLEY: Well, the first statute that comes in is 18 USC 1001. And this is a statute that says you can’t lie to a federal investigator, can’t give them false documents. So if someone comes...

HUME: False documents or information, right?

TURLEY: Right, or information. So when someone comes to the White House, and says, "I want to ask you about whether you talked to Bob Novak or someone else"...

HUME: And this is an informal chat by an investigator just getting on the case?

TURLEY: Yes.

HUME: And you say something, right?

TURLEY: And you say something.

HUME: That’s based on your most kind of casual, not well-thought-out memory, which you later change, could be in trouble?

TURLEY: You could be in trouble. And what happens is, in this town, it’s very interesting how many really seasoned people do these informal interviews and don’t realize that they could be criminally charged if anything they say is later proven to be false. Now, with the next step...

HUME: Well, don’t you have to prove that you knew it was false and you intentionally misled the investigation?

TURLEY: You do. There is an intent standard. But you have to be able to say in defense, "At the time, I believed this was to true." And that goes to a jury.

So once do you that initial interview...

HUME: So if the jury doesn’t like you, they might find the intent whether you had it or not.

TURLEY: Right. And juries tend to be really suspicious of power brokers and people in powerful places.

HUME: And there’s also the perjury statutes, right?

TURLEY: Right.

HUME: So if you get on a grand jury under oath, same kind of thing happens?

TURLEY: Yes. And a grand jury, a lot of defense attorneys do not have their clients go to a grand jury.

HUME: Why?

TURLEY: Because that prosecutor can ask you about anything. They can ask you if you talked to Bob Novak, or if you had a ham sandwich for lunch, or if you paid your taxes last year.

And you’re there for hours. You don’t have a defense attorney in there. You can leave and go outside and speak to a defense attorney, but that takes a lot of intestinal fortitude. And most people don’t do that. They try to get through it on their own. But what happens...

HUME: To prove to the grand jury that they’re on the up-and-up, and they’ve got nothing to hide, and all that?

TURLEY: Everyone I’ve ever represented thought they could convince the grand jury. They thought that they could just look them in the eyes, they’ll know I’m innocent. But the fact is, a lot of grand juries will, as they say, indict a ham sandwich if the prosecutor...

(CROSSTALK)

HUME: So you think it was. So let’s just pick Karl Rove, assuming he’s the focus here. He testified we know more than once before the grand jury. Some say three times.

TURLEY: Right.

HUME: Were you his lawyer, would you recommend he not do so? And could he — or did he have a choice, the president having urged everyone to cooperate?

TURLEY: It would have been dynamite for Rove to decline to testify or to take the Fifth. If he took the Fifth, his career would be over.

Rove’s in this impossible position. The first problem for Rove is he’s Rove. And he is now a political icon.

HUME: Biggest fish in town...

TURLEY: Oh, man.

HUME: ... except for the president.

TURLEY: Yes. And he is — you know, it’s hard to see where he ends and the president begins. And that’s a dangerous position.

HUME: Because it makes such an inviting target for the press.

TURLEY: That’s right.

HUME: Let me ask this question. His lawyer has said repeatedly — and let’s assume for the sake of this question that it’s true — that he’s not a target of this investigation. Does that really tell us anything about whether he’s going to be OK in this or not?

TURLEY: No, it doesn’t. It generally means that he was not and is not a target under the identity statute, but it doesn’t mean that he didn’t hit a trip wire on perjury or obstruction.

HUME: Is the prosecutor obliged to tell you if you have, and tell you, you are now a target?

TURLEY: Usually, the prosecutors will indicate to you that this person is now a target or facing a possible charge.

HUME: All right. Jonathan Turley, great to have you. Thank you.

TURLEY: Thank you.

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